RAY - (1.) THE Judgment of the court was delivered by
(2.) THE petitioner who is the brother of detenu, Abdul Latif Abdul Wahab Sheikh of Ahmedabad has challenged in this writ petition the order of detention dated 23/05/1988 passed by respondent 1, the Commissioner of Police. Ahmedabad City, Gujarat issued under S. 3(2 of the Gujarat Prevention of Anti-Social Activities Act, 1985 and served on the detenu while the detenu was in custody at Sabarmati central Prison under a judicial order of remand made by the Designated court. Ahmedabad in respect of C. R. No. 40 of 1987, on the grounds inter alia that there has been absolute non-application of mind on the part of the detaining authority in clamping the order of detention and also on other grounds. In order to decide the various contentions raised in this writ petition, it is necessary to consider the background as well as the various orders of detention passed against the detenu by the detaining authority, respondent 1. On 11/09/1984, the detenu was served 224 with a show-cause notice under S. 59 of the Bombay Police Act, 1951 calling upon him to show cause as to why he should not be externed from the limits of Ahmedabad City Police commissioners jurisdiction and its surrounding areas as also from the rural areas of Gandhinagar, Kheda and Mehsana District limits for the activities of February 1983. In 1985 the detenu was arrested for alleged offences under S. 307, 143, 147, 148, 149 and 324 of Indian Penal Code in C.R. No. 37 of 1985. On 14/02/1985 the detenu was granted bail in the said case by the Sessions court, Ahmedabad. On 18/03/1985 communal riots broke out in Ahmedabad city and on 24/03/1985 an order of detention under the National Security Act was passed against the detenu by respondent 1. During the communal riots one Police Sub-Inspector. Mr Rana was killed in Kalupur P. S. FIR was lodged against the detemi and six other accused on 9/05/1985. In the FIR the detenu was named as accused 2. On 6/07/1985 charge- sheet was submitted in C.R. No. 37 of 1985. On 27/09/1985 enquiry was completed in externment proceedings and arguments were heard. On 12/11/1985, the detenu surrendered to police and he was arrested and taken into custody. In the said case accused 6 and 7 were discharged, the detenu along with accused 4 was tried in the said charge by the Principal Judge, Sessions court who by his judgment dated 26/05/1986 acquitted the detenu and the co-accused after recording of the evidence of witnesses and considering the same. The detenu was. however, enlarged on bail by the Magistrate in the said case vide his order dated 23/06/1986 as no case was made out against the detenu under S. 307 Indian Penal Code and the offence, if any, was only under S. 324, IPC. The detenu was released from jail on 23/06/1986 and immediately as he came out. an order of detention under the Prevention of Anti-Social Activities Act (PASA) was served on the detenu there and then and he was once again taken into custody. It is relevant to mention in this connection that on 18/01/1986 the order of externment of the detenu from Ahmedabad city and rural areas of Gandhinagar etc. was made while he was in custody. The detenu preferred an appeal against the externment order which was heard by the Deputy secretary (Home). The State government confirmed the order of externment on 23/06/1986. On 7/08/1986, the State government revoked the order of detention dated 23/06/1986 on the ground that no Advisory Board was constituted. On the same day. however, the State government passed the second order of detention under PASA and the same was served on the detenu on the same day. The detenu filed a Special Criminal Application No. 862 of 1986 challenging the externment order dated 18/01/1986 and its confirmation order dated 23/06/1986 before the High court of Gujarat. The detenu also filed another Special Criminal Application No. 889 of 1986 before the High court challenging the second order 225 of detention dated 7/08/1986. The Special Criminal Application No. 889 of 1986 was dismissed by the High court on 21/10/1986. Against this judgment the detenu filed a Special Leave Petition (Cri) No. 3762 of 1986 before this court and the said petition was finally heard in part on 23/01/1987 and it was adjourned to 3/02/1987. This court released the detenu on parole only on 23/01/1987 for the reason that the detenu was required to be in Ahmedabad because the Corporation elections were to take place on 25/01/1987. Unfortunately, the mother of the detenu expired on 23/01/1987, but in spite of the order of parole made by this court, the State government permitted the detenu to attend his motherS funeral by granting him parole for only four hours and after the funeral, the detenu was again taken into custody. Thereafter, the detenu was released on parole on 24/01/1987. The elections for the Corporation were held on 25/01/1987 and the detenu was declared elected from all the wards from which he had contested. On 3/02/1987, the appeal of the detenu was heard finally by this court and this court extended the parole granted to him till the judgment was delivered in the case. However, on 3/02/1987 in spite of the orders of parole, the detenu was kept in custody and was released only on the next day i. e. 4/02/1987. This court by its judgment dated 9/02/1987 quashed the detention order and directed the respondents to set the detenu at liberty forthwith.
(3.) THE detenu in terms of his earlier bail orders was required to be present before Kalupur P.S. every morning at 11 a.m. and he continued to do so from February 9 to February 14, 1987. On 14/02/1987 when the detenu reported at Kalupur P.S. along with his advocate to record his presence, he was asked to wait there. At about 12.30 p.m., he was informed that he was taken into custody for breach of orders of externment dated 18/01/1986. THE FIR against this case was registered and the detenu was produced before the Metropolitan Magistrate at about 1.30 p.m. THE Metropolitan Magistrate granted bail to the detenu. At that time the detenu received the news that disturbances had broken out in the city of Ahmedabad and, therefore, he declined to avail of the bail order and requested the Magistrate to take him into custody. On 15/02/1987, the order of detention under S. 8 (a) of the National Security Act was passed against the detenu by the Commissioner of Police, Ahmedabad City. THE detenu was served with the order which was confirmed 226 by the State government on 18/02/1987. This order of detention was challenged by the detenu by a writ petition under Article 32 of the Constitution of India before this court being Writ Petition (Cri.) No. 246 of 1987. This court issued rule returnable to 4/04/1987. Pending disposal of the writ petition, the detenu was released on 3/04/1987 by the Advisory Board constituted under the National Security Act. Furthermore, to harass the detenu two FIRs being C.R. Nos. 34 and 40 of 1987 were lodged against the detenu in Kalupur P.S. On 22/06/1987 the detenu on receiving notices of two meetings, one of the General Body and the other of Suez Refugee Committee of the Ahmedabad Municipal Corporation to be held on June 26 and June 23, 1987 respectively, made an application to the Home secretary, government of Gujarat seeking permission to visit Ahmedabad for one month. As no reply was received by the detenu. the detenu moved Cri. Misc. Petition No. 1345 of 1987 before the High court for permission to visit Ahmedabad. THE aforesaid miscellaneous applications were rejected by the High court. THEreafter, the detenu filed Special Leave Petition (Cri) No. 1952 of 1987 before this court against the impugned order of extemment of the detenu for a period of two years with effect from 18/01/1986. Notice was issued on the said petition but as the period of extemment expired, the said petition was finally disposed of by this court. On 16/10/1987, the detenu was arrested by the police for an alleged offence committed by the detenu in respect of the incident of 14/02/1987 i. e. breach of extemment order dated 18/01/1986. The detenu applied for bail to the Designated court, Ahmedabad but the bail application was rejected vide order dated 24/11/1987. The detenu filed an appeal before this court under S. 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1985. This appeal being Criminal Appeal No. 316 of 1988 was disposed of by this court on 27/04/1988 setting aside the impugned order of the Designated court rejecting application for bail and remitting the case to the Designated court for a decision afresh. The Designated court was also directed to enlarge the applicant on bail on such terms as it deems fit pending disposal of the application for bail on merits. The respondents being afraid that this court may allow the said Criminal Appeal No. 316 of 1987 made another order of detention on 25/01/1988 and served the order on the detenu on the same day. This detention order was made under S. 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985. This order of detention was challenged by Criminal Writ Petition No. 114 of 1988 before this court. Rule was issued and the petition was heard on merits. The detention order was withdrawn as the Advisory Board refused to confirm 227 the order of detention. The detenu was released on 14/03/1988. The detenu accordingly went home. However, when Criminal Appeal No. 316 of 1988 came up for hearing before this court on 7/04/1988 an allegation was made that detenu had absconded. This court however, ordered on 7/04/1988 that the detenu should surrender within a week. In compliance of the said order the detenu surrendered on 13/04/1988 and on 23/05/1988 the order of detention was made as stated hereinbefore.;